Privacy/Social Media

1. TAKE THIS JOB AND TWEET IT:
Best Practices for Dealing with
Social Media
Larissa Dean
West Virginia North Carolina Pennsylvania Virginia
www.spilmanlaw.com

2. In 2011, 42% of corporate compliance
officers reported disciplining for
misusing social media applications.

3. But only 31% of organizations had
specific policies related to social
media.

4. Statutes at Issue
• Electronic Communications Privacy Act (“ECPA”): Prohibits
interception of electronic communications such as email.
– Invoked by employees seeking privacy protection of electronic data to
prevent against screening.
• Stored Communications Act (“SCA”): Protects information
stored electronically.
– Waiver of SCA protection by user consent.
• National Labor Relations Act (“NLRA”): Protects employees’
rights to engage in “protected concerted activities.”
– The next wave of litigation?

5. What are the risks of Social Media?
Hostile work environment
Textual Harassment: sending inappropriate
messages through cell phone or other web 2.0
mediums of communication.
Risks: same as traditional harassment, courts
may hold employers liable for their
employees’ harassing behavior.

6. Textual Harassment
• New mediums of communication become
platforms for employee harassment.
• Texts allow employees to be discreet.
• No concern with an email or text message
that a supervisor will overhear.
• Low risk of confrontation after sending
message.

7. Gainey v. Bluecross Blue Shield of South
Carolina
• Plaintiffs (both men), one the victim’s supervisor, sent sexually charged text messages (graphic pictures,
sexual propositions, suggestions that sexual involvement would further her career) to a female co-worker
from their personal cell phones.
• Victim saved the text messages and contacted the Director of Incident Management and HR.
• Plaintiffs were suspended without pay during the investigation and then terminated.
• Plaintiffs brought Title VII claim of disparate discipline and claim of defamation based on BCBS causing it
to be “well-known in the workplace...*they+ had been suspended for alleged sexual harassment.”
• Court dismissed Title VII claim on grounds that one Plaintiff was a supervisor and had a higher disciplinary
standard, and the second Plaintiff already had an Employee Corrective Action Report filed against him for
inappropriate conduct.
• Court dismissed defamation claim because Plaintiff presented only hearsay statements to support claim
that BCBS “published” their termination on the basis of sexual harassment.
Gainey v. BCBS of SC, 3:09-986-JFA-JRM, 2010 WL 3699871 (Aug. 9, 2010).

8. Kurtts v. Chiropractic Strategies Group (CSG), Inc.
• Plaintiff, a receptionist, received “numerous lewd and sexually offensive text messages at all hours of the day and
night” from her direct supervisor.
• Plaintiff reported text messages to CSG’s clinic administrator, said she no longer felt comfortable at work, and
resigned that same day.
• Plaintiff reported her case to the EEOC, received a right to sue letter, and filed an action against CSG raising
claims of sexual harassment, negligent hiring, supervision, and training, among others.
• Court acknowledged CSG’s well-established procedure for reporting complaints of sexual harassment outlined in
the Policy Manual.
• Summary Judgment granted in favor of CSG because Plaintiff resigned at the same time she reported complaint
and gave company no time to remedy the situation.
Kurtts v. Chiropractic Strategies Grouopr, Inc., 09-0712-M, 2011 WL 833978 (Mar. 4, 2011).

9. Morrow Botros v. Williams Lea
• Plaintiff, an office services associate, alleged that his direct supervisor sent him multiple text
messages that were sexually explicit and related to his sexual orientation.
• Plaintiff complained to the senior HR specialist that text messages were sent at all hours of the
day and night.
• Plaintiff was terminated for bringing a “conflict” to the work environment, and supervisor was also
terminated after investigation.
• Plaintiff brought claims of discrimination, harassment, and retaliation against employer, Williams
Lea.
• Summary Judgment for the employer denied because Plaintiff presented enough evidence of a
hostile environment for sexual-orientation harassment claim to proceed and issue existed as to
whether Defendant took steps to prevent and correct discrimination.
Morrow Botros v. Williams Lea, 09-CV-1762 H (RBB), 2010 LEXIS 54301 (June 1, 2010).

10. NLRA Issues
“Talking Smack” About the Boss
• The NLRB has held that the use of “rhetorical
hyperbole” to emphasize disapproval of
management does not remove the speech
from the NLRA’s protection.
• Unbelievable – but completely true.
• Case-by-case analysis.

11. NLRA Issues
Sharing Pay Information with Co-workers
“A rule prohibiting employees from communicating
with each other regarding wages, a key objective of
organizational activity, undoubtedly tends to
interfere with the employees’ right to engage in
protected concerted activity.” NLRB v. Main Street
Terrace Care Center, 218 F3d 531 (6th Cir. 2000).

12. NLRA Issues
Prohibiting Discussion of Harassment Complaints
• During investigations, employers often tell
witnesses/employees not to discuss the
complaint among themselves.
• Phoenix Transit System case before the NLRB.

13. NLRA Issues
Restricting Employee E-mail Message Use
• Guardian Publishing, Register-Guard case NLRB (2007).
• Can always restrict if business-only (unrealistic).
• Can restrict solicitation as long as the employer
generally prohibits solicitations (can limit to a charity).
• If e-mail used for personal purposes, then must
compare union-related e-mail to other permitted uses.
• Can also be a vehicle for protected concerted activity.

14. NLRA Issues
Employee Rights to Solicit and Distribute
Literature
Employees may:
• Solicit other employees during their non-working time; and
• Distribute literature to other employees during non-working
time and in non-working areas.
Except healthcare (employer can limit in patient care areas)
and retail (employer can limit sales floor).

15. Social Media Policies
• Not a question of whether, but how to deal
with social media.
• Social media policies:
– At work access to social networks
– After hours behavior

16. Social Media Policies
Starting Point:
Assess needs, nature and culture of
the business

17. Social Media Policies
• Look at and reference other policies:
– Non-discrimination and harassment
– Electronic communications
– Confidentiality
– Conflicts of Interest
– Data protection
– Antitrust
– Intellectual property
– Corporate code of conduct

18. Social Media Policies
The Basics
1. Employee must read and sign at outset.
2. Require adherence to company code of
conduct/values.
– No slurs, demeaning jokes, sexist terms, offensive
photos, etc.
3. Prohibit disclosure of confidential information.
4. Remind employees of their own personal
responsibility for posts.

19. Social Media Policies
The Basics
5. Disclaimers – reflect content of post as being
author’s opinion alone.
6. Limit blogging, tweeting, facebooking while on the
job to business-related purposes.
7. Violation can lead to discipline, up to and including
termination.

20. “At Work” Guidelines
1. Employer’s communications systems and devices
should be used for business-related purposes.
2. Employees should not expect any privacy.
3. Permit reasonable use of social media for work-
related purposes (such as research or to
participate in audio conferences or webinars).

21. “At Work” Guidelines
4. Require written approval from supervisors that
outlines use of social media before using it for
work-related purposes.
5. Note the websites that require employees to log-
in for use.
6. Prohibit personal use of electronic
communications systems and devices for social
media purposes regardless of whether such use
occurs during work or non-work time.

22. “Off The Clock” Guidelines
1. Respect an employees’ right to express personal
opinions when using personal social media web
pages.
2. Do not retaliate or discriminate against employees
who use social media for political, organizing, or
other lawful purposes.

23. “Off The Clock” Guidelines
3. Remind employees of your code of conduct
and social media policies before they discuss
work-related activities on their personal
social media web pages.

24. “Off The Clock” Guidelines
4. “Employer protects its copyrights, trademarks,
patents, trade secrets, customer lists, and other
sensitive proprietary, and confidential material. Do
not display or disclose such material through social
media without prior written approval from
Employer.”

25. “Off The Clock” Guidelines
5. “Employees cannot use social media to
disparage or embarrass Employer or its
management, practices, products, or
services, or otherwise harm Employer’s
reputation.”

26. Sears’ Social Media Policy
In order to maintain the Company’s reputation and legal
standing, the following subjects may not be
discussed by associates in any form of social media:
1. Company confidential or proprietary information;
2. Confidential or proprietary information of clients,
partners, vendors, and suppliers;
3. Embargoed information such as launch dates,
release dates, and pending reorganizations;

27. Sears’ Social Media Policy
4. Company intellectual property such as drawings,
designs, software, ideas and innovation;
5. Disparagement of Company’s or competitors’
products, services, executive leadership,
employees, strategy, and business prospects;
6. Explicit sexual references;

28. Sears’ Social Media Policy
7. Reference to illegal drugs;
8. Obscenity or profanity;
9. Disparagement of any race, religion, gender,
sexual orientation, disability, or national
origin.

29. Sears’ Social Media Policy
The NLRB “draft” opinion
• The policy does not explicitly restrict protected
activities.
• Sears did not issue the policy in response to union
activity or use it to restrict employees’ NLRA rights.
• Sears’ policy “cannot reasonably be interpreted to
prohibit ... protected activity.”

30. Social Media and Hiring
• 50% of web users say they would be
embarrassed if their employer visited their
social networking site.

31. Social Media and Hiring
Why look at social media during the hiring
process?
– Obtain information you would not receive in an
interview or resume.
– See if an individual fits the “culture” of your
corporation.
– Determine if the individual poses any specific risk
to your business.

32. Social Media and Hiring
Cons:
• Information you do not want to know
• Privacy issues
• Publicity issues
• Litigation risks

33. The Risks
Discrimination
– Access to profile provides information you may not
want imputed to your employment decision, e.g.,
race, pregnancy status, age, disability, religion,
genetics, etc.
– Allows applicant to argue that employer relied on
improper characteristic.
– Could lead to both disparate impact and disparate
treatment claims.

34. Potential Corporate Liability
Harassment, Discrimination and Defamation
– Is employee acting within scope of duties when
posting?
– To what extent does the employer have the
right/obligation to control or monitor?

35. The Risks
Fair Credit Reporting Act
– Governs “employment background checks for the
purpose of hiring.”
– Only applies if employer uses a third-party
screening company to conduct the check.
– Do the checks internally, rather than using an
outside service?

36. Potential Corporate Liability
For Posting Positive Information / Endorsements
• FTC guidelines impose liability for failing to
disclose “material connections.” 16 C.F.R.
§225.
• Employee posting opinion about employer’s
product must notify reader that he/she is an
employee.
• Potential violation even if information is true.

37. Potential Corporate Liability
• Concerted protected activity (e.g., discussing
wages and working conditions, emailing
coworkers about new vacation policy).
• Whistleblower status (e.g., Sarbanes Oxley).
• Support co-worker who filed charges.

38. Social Media Policies
Enforcement
• Avoid management overreaction
– No first amendment rights in private sector.
– All negative comments warrant discipline.

39. Discipline / Termination
Pros:
• Catch employee misconduct:
– Dishonesty about need for absence
– Harassing/discriminating behavior
– Disclosing confidential information
– Badmouthing company (but watch for protected activity!)
– Illegal conduct
• Avoid negligent retention claim

40. Discipline / Termination
Cons:
• Risk of inconsistency
• Risk of making decision based on incorrect
information
• Bad publicity for company
• Increased likelihood of litigation

41. Discipline / Termination
Protected content
– National Labor Relations Act
– Political (some state statutes)
– Religion or other protect category
– Whistleblowing conduct

42. Headline-Making Events
• Delta Airlines Flight Attendant Fired For Provocative
Pictures On Website.
• Oregon Mayor Recalled Because of Lingerie Photo On
MySpace Page.
• Teacher Denied Education Degree Because Of Photo On
MySpace Page Captioned, “Drunken Pirate.”
• Pennsylvania Law Student’s Job Offer Rescinded Upon
Discovery Of Association With Website Containing Anti-
Female Statements.
• Yale Law Students’ Lawsuit Against Anonymous Blog
Posters.

43. TAKE THIS JOB AND TWEET IT:
Best Practices for Dealing with
Social Media
Larissa Dean
West VirginiaNorth Carolina Pennsylvania Virginia
www.spilmanlaw.com